2010 (12) TMI 1155 - HC - Central Excise

Tribunal Invalidates Penalty Order, Requires Compliance with 25% Payment Option

The Tribunal held that the Adjudicating Authority's failure to offer the option to pay 25% of the penalty rendered the original order invalid. It directed ... Penalty u/s 11AC - whether the Tribunal is justified in reducing the penalty to 25% of the duty leviable on the respondent? - Held that: - The decision of the Tribunal is in consonance with the principles enunciated by this Court in the case of Commissioner of Central Excise and Customs, Surat-II v. Mahalaxmi Industries, [2010 (2) TMI 676 - GUJARAT HIGH COURT], wherein, the Court has inter-alia held that as far as statutory obligation of the Adjudicating Authority is concerned, the Central Excise Department itself has issued Circular on 22-5-2008 wherein it is clarified that in all cases wherein penalty under Section 11AC of the Act is imposed the provisions contained in the first and second proviso to Section 11AC should be mandatorily mentioned in the order-in-original itself by the adjudicating authority. It is, therefore, not open for the revenue to agitate this issue before the Court in contradiction of the Circular issued by the Central Excise Department - appeal dismissed - decided against Revenue. Issues:1. Compliance with the law in passing the Tribunal's order.2. Jurisdiction of the Commissioner (Appeals) to offer reduced penalty.3. Error in confirming the order of the Commissioner (Appeals) by applying a previous judgment.4. Confirmation of duty demand and penalty reduction by the Commissioner (Appeals).5. Interest rate confirmation by the Adjudicating Authority.6. Compliance with Circular on penalty imposition.Issue 1: Compliance with the law in passing the Tribunal's orderThe Tribunal's decision was challenged on the grounds of legality. The Tribunal held that the Adjudicating Authority should have given the option to the assessee to pay 25% of the penalty, as per the first proviso to Section 11AC of the Act. Since this was not done, the original order was deemed invalid. The Tribunal directed a remand for the option to be given, extending the period for payment from the date of the new order. The Commissioner (Appeals) had allowed the benefit of depositing 25% of the penalty within 30 days of his order, which was upheld by the Tribunal based on the specific circumstances of the case.Issue 2: Jurisdiction of the Commissioner (Appeals) to offer reduced penaltyThe Commissioner (Appeals) confirmed the duty demand but reduced the penalty to 25% of the duty amount if paid within 30 days of the order receipt. The Tribunal highlighted the obligation of the Adjudicating Authority to provide the option for reduced penalty as per the law. The Tribunal upheld the Commissioner (Appeals)' decision to allow the deposit of 25% of the penalty within 30 days of the communication of his order, considering the specific circumstances of the case.Issue 3: Error in confirming the order of the Commissioner (Appeals) by applying a previous judgmentThe Tribunal considered whether it had erred in confirming the order of the Commissioner (Appeals) by applying a judgment from a previous case. The Tribunal referenced a decision by the High Court of Punjab & Haryana and concluded that the Commissioner (Appeals) acted correctly in allowing the deposit of 25% of the penalty within 30 days of his order.Issue 4: Confirmation of duty demand and penalty reduction by the Commissioner (Appeals)The Adjudicating Authority confirmed the duty demand of Rs. 2,19,157 based on clandestine removal. The Commissioner (Appeals) upheld the duty demand but reduced the penalty to 25% of the duty amount if paid within 30 days of the order receipt. This decision was challenged by the Revenue, leading to the appeal before the Tribunal.Issue 5: Interest rate confirmation by the Adjudicating AuthorityThe Adjudicating Authority confirmed the interest rate at 13% per annum, which was lower than the prevailing rate of 24% per annum during the relevant period. The Tribunal noted this discrepancy and directed the Adjudicating Authority to confirm the interest rate in accordance with the rates applicable during the relevant time.Issue 6: Compliance with Circular on penalty impositionThe Tribunal referred to a Circular issued by the Central Excise Department mandating the mention of penalty provisions in the order-in-original when imposing penalties under Section 11AC of the Act. The Tribunal emphasized that this Circular must be followed, and the revenue cannot contest this requirement. The Tribunal dismissed the appeal in line with the principles established in a previous case, emphasizing adherence to Circular guidelines.